Miley Cyrus, Too Young for Marriage?

June 12, 2012

Child superstar Miley Cyrus recently got engaged to fellow actor Liam Hemsworth.

The couple first met in 2009 on the set of the film The Last Song. Although their relationship has been a bit rocky, Cyrus, 19, and Hemsworth, 22, agreed it was time to get married. Much of the recent media attention has been critical of the pending nuptials for the young couple. The main argument against the marriage is that Cyrus is not old enough to make such a commitment. Newly engaged couples are eternally optimistic and excited for the future; however, much talk is already surrounding a potential Cyrus-Hemsworth divorce.

According to the federal Centers for Disease Control and Prevention, 48% of people who marry before reaching age 18 are at a greater risk of divorce within 10 years. In contrast, only 24% of people who marry after age 25 risk the same unfortunate outcome. In addition to statistics on marriage and age, studies have been conducted regarding the connection between education and divorce. The University of Virginia's National Marriage Project has discovered a link between lower divorce rates and college degrees. This study claims that people without a college degree are 3 times more likely to get divorced within 10 years as those with college degrees. Because neither Cyrus nor Hemsworth attended college, this study is being cited to predict their future break-up.

All marriages and relationships tend to have problems at some point in time. However, there are a few reoccurring trends that tend to afflict more relationships. According to the New York Times, financial tension is one of the leading factors leading to divorce in America. Faculty at Utah State University conducted a study which found that couples who disagree about finances one per week were 30% more likely to get divorced than couples who did not. Many times teens like Cyrus are unfamiliar with budgeting and finance, which can lead to disagreements about finance in a young marriage. It may be important to have finance-related discussions or to create an agreement prior to marriage. Younger married couples may also have to adjust from a more stable and comfortable life of living at home to the world of unemployment and forty hour work weeks living with their new spouse.

Among the other top culprits for divorce are: (1) disagreements about child rearing, (2) division of household responsibilities, (3) expectations in the marriage, (4) addiction, (5) sex, (6) physical, psychological and/or emotional abuse, (7) communication breakdown, (8) marriage infidelity, and (9) religious and cultural strains. Many of these issues can be discussed prior to marriage. Preferences on child rearing and religious preferences may seem obvious but it couldn't hurt to have a discussion about it before you tie the not. It is important to consider that not all statistics are not accurate all of the time; therefore there is hope for all marriages in general regardless of the ages of the bride and groom.

Please contact us if you are considering a divorce from your spouse, a legal separation, or have questions regarding child custody and visitation. Nancy J. Bickford is the only attorney in San Diego County representing clients in divorces, who is a Certified Family Law Specialist (CFLS) and who is actively licensed as a Certified Public Accountant (CPA). Don't settle for less when determining your rights. Call 858-793-8884 in Del Mar, Carmel Valley, North County or San Diego.

Who Pays When the Wedding is Called Off?

June 7, 2012

In New York, a man is suing his ex-fiancé for contributions made in contemplation of their upcoming nuptials. Specifically, Steven Silverstein is asking for $19,000, which she allegedly withdrew from their joint bank account prior to the most recent split, $28,000 in rent to represent her ½ contribution for the apartment they shared, and $27,000 he spent in nonrefundable deposits a wedding photographer, hotel rental, videographer, and furniture rentals. The couple was engaged for two years during which Kendra Platt-Lee broke off the pending wedding twice.

Platt-Lee has since moved to San Diego and is pursuing a career in marketing. According to her lawyer, Platt-Lee denies all allegations and even plans to file a countersuit against Silverstein for failure to return her personal belongings. It is her position that relationship was resolved when she returned the $32,000 engagement ring he had given to her. The question for the Manhattan Supreme Court is whether the cash, the rent, and the deposits were all gifts from Silverstein to Platt-Lee or whether he has a right to reimbursement now that she has cancelled the wedding.

According to California Law, Platt-Lee followed the correct protocol in returning her lavish engagement ring. An engagement ring is typically considered a gift, however, if the couple separates prior to the wedding, the circumstances of this break-up may determine the true owner of the ring. Under California Civil Code section 1590, the "giver" of the engagement ring, here Silverstein, is entitled to the ring or the value of the ring if the "receiver", here Platt-Lee, later refuses to enter into the marriage. In addition, the "giver" is also entitled to return of the ring if both parties agree to call off the pending nuptials. However, although the law is not crystal clear, generally, if the "giver" refuses to enter into the marriage, he or she is not entitled to return of the gift given in contemplation of that marriage. These are general principles of law and any evidence of fraud may still affect the outcome of a particular case.

Calling off a wedding can be an emotional experience for both parties but they still may be wondering who is still responsible for the presently incurred costs. Engagement is not a legal contract and does not confer upon the parties the same rights as a marriage. If a party has signed a contract with a vendor, he or she may still be required to pay that vendor even if the wedding is called off. However, if both parties have signed the contract, they will both be liable to the vendor. Under general property division laws in California, any property acquired individually by a party is his or her separate property before the date of marriage. This same principle is true regarding any debts acquired prior to marriage. It is important to consider the individual agreements made between the parties and what arrangement was made regarding wedding expenses. Principles of contract law may apply to these situations especially if the parties entered into a written agreement or premarital agreement that contained a relevant clause.

In order to protect against unforeseen circumstances such as a wedding cancellation or postponement, many soon-to-be spouses are getting wedding insurance. Wedding insurance can cover no-show vendors, ruined photography, stolen wedding gifts, and various other mishaps.

Please contact us if you would like to know your rights upon marriage. Nancy J. Bickford is the only attorney in San Diego County representing clients in divorces, who is a Certified Family Law Specialist (CFLS) and who is actively licensed as a Certified Public Accountant (CPA). Don't settle for less when determining your rights. Call 858-793-8884 in Del Mar, Carmel Valley, North County or San Diego.

Temporary Restraining Orders - More Than Just Paper?

June 5, 2012

Twenty-two year old Sophia Ortiz obtained a temporary restraining order issued to protect her from the father of her children Julio Martinez. The couple's two young children are only ages one and two. After the restraining order was issued, Martinez blatantly disobeyed it by appearing at Ortiz's apartment twice. Each time Ortiz called the local police and by the time they arrived Martinez had fled the scene. The police continued to search for Martinez while he made his way back to the apartment and succeeded in breaking in.

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According to authorities, upon entry into the apartment, Martinez brutally murdered Ortiz in the presence of his two children. When the police arrived back at the apartment, they discovered Ortiz in the bedroom with a carving knife still in her back; she died during surgery early the next day. The children were physically unharmed and Martinez was apprehended. He is currently being held on one million dollars bail.

Many are outraged by the lack of protection provided to Ortiz by the judicial process, especially the temporary restraining order (TRO). Unfortunately approximately 11% homicides committed throughout the United States between 1979 and 2002 were attributable to domestic violence. Considering this statistic, it is estimated that 3,300 children lose a parent every year to domestic violence related homicides in the United States. However, it is important to note that the TRO was never served on Martinez. Any relationship involving domestic violence can be dangerous for both parties at all times, particularly when the victim attempts to end the relationship and leave his or her abuser. A TRO can provide the victim with the power to have his or her abuser arrested if they violate the stipulations of the order.

In San Diego, an estimated one out of every four children, like Ortiz's children, is directly exposed to domestic violence either has a victim or a witness. Regardless of whether a child is physically abused, domestic violence will have an enormous impact in many other areas of his or her life. According to the American Psychiatric Association, children merely exposed to domestic violence are at risk for a variety of developmental problems, difficulty in school, aggressive behavior problems, psychiatric disorders, and low self-confidence. In addition to behavioral, developmental, and social consequences to children, children who witness domestic violence may have a resulting impaired educational attainment.

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Coping with Divorce: You are not alone

It is never easy, no matter what the situation is, to go through a divorce. Thousands of people right here in San Diego go through divorce each year. A divorce can turn your everyday life upside down and make it feel impossible to move forward. You may be experiencing profound emotions of disappointment, stress, and grief; however it is important to remind yourself that you can and will eventually be able to move on, you just have to take it one day at a time.

Here are three strategies to help you cope with your divorce:

Recognize that it is okay to have feelings; don't fight them. It is normal to feel angry, sad, exhausted, and confused. You may also feel anxious about the future, and uncertain of what happens next. Even if the marriage was unhealthy, it is frightening to think about the unknown. Grief is a natural reaction to loss, it is essential to the healing process. The pain of grief is precisely what helps you let go of the old relationship and move on. And no matter how strong your grief, it won't last forever.

Make sure to reach out for support and talk about your feelings. Although it may be difficult, it is important that you work through your emotions. Knowing that you have others around you who know about your feelings or are going through the same thing will make you feel less alone. Find a support group or surround yourself with close friends and family that can help you through this difficult time. It is normal for us as humans to be afraid to ask for help, but you will be pleasantly surprised when you start to let people in. Try to choose people who are positive and will truly listen to you. It is important that you feel you can be honest without feeling judged or criticized about the way you are feeling.

Continue reading "Coping with Divorce: You are not alone" »

Should a Sperm Donor Pay Child Support?

May 31, 2012

National bodybuilding champion, Ronnie Coleman, was sued for child support by the mother of his children, Jo D. Jo D. requested that Coleman pay support in the amount of $4,000 per month for the care of their triplets. This is a typical scenario in San Diego family law cases because parents are often sued for past due child support. However, Coleman had a winning argument against payment because he was merely a sperm donor. A California appellate court determined that a sperm donor does not have to pay child support as long as he is not married to the recipient mother.

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The relationship between Coleman and Jo D. blurred the lines between natural father and sperm donor. The two had a sexual relationship while they both lived in Texas as neighbors. Later, Jo D. moved to California and Coleman provided his sperm at California Cryobank, Inc. so that she could be artificially inseminated. Shortly after the birth of triplets resulting from the artificial insemination, Coleman married another woman. At birth, Jo D. listed Coleman on the triplets' birth certificate as their father. One year later, she brought a lawsuit to collect child support against Coleman.

Under the California Family Code section 7613(b), "the donor of semen provided to a licensed physician and surgeon or to a licensed sperm bank for use in artificial insemination or in vitro fertilization of a woman, other than the donor's wife, is treated in law as if he were not the natural father of a child thereby conceived." This presumption is not absolute and can be overcome in various ways by the father such as: marrying the mother, publically declaring parentage of the child in a manner specified by statute, receiving the child into his home or opening holding the child out to be his natural child.

Here, although Coleman and Jo D. agreed to this sperm donation arrangement, Coleman has since acted inconsistent with any indication that he intended to be a natural father to the children and involved in their lives. Since the birth of the children, Coleman did not marry or attempt to marry Jo D. In fact, he married another woman just months after the birth of the triplets in 2007. Further, Coleman did not open his home to the children nor did he hold them out to be his natural children. Therefore, as the appellate court correctly held, Coleman is not responsible to financially support the children despite his sperm contribution.

Typically, all orders made in family law cases concerning children are based on the best interest of the child. Although it is likely in the triplets' best interest for Coleman to pay support, the interest of sperm donors to be free from the financial obligation of their contribution overrides the application of the best interest standard.

Please contact us if you have questions regarding child custody and visitation or child support. Nancy J. Bickford is the only attorney in San Diego County representing clients in divorces, who is a Certified Family Law Specialist (CFLS) and who is actively licensed as a Certified Public Accountant (CPA). Don't settle for less when determining your rights. Call 858-793-8884 in Del Mar, Carmel Valley, North County or San Diego.

Mark Zuckerberg's Opportunistic Wedding

May 30, 2012

On May 19, 2012, Priscilla Chan married the creator of Facebook, Mark Zuckerberg. The couple met in 2003 at a fraternity party at Harvard where they both attended college. The wedding ceremony took place at the home they share in Palo Alto and most of the details are still being kept private. However, the wedding date has sparked the most media attention. Mark and Priscilla tied the knot just one day after Mark's company went public. On his wedding day, Mark owned 503 million shares of Facebook, which at the time, was worth an estimated $17 billion. Sources indicate that Priscilla has no interest in Mark's fortune. In fact, she recently graduated from medical school at the University of California, San Francisco and plans to pursue a career as a pediatrician.

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San Diego is located in one of the few states that have adopted community property laws. In community property states, any property acquired prior to marriage is separate property. Separate property will be awarded to the owner upon divorce without offset. Anything acquired after marriage is community property and generally distributed equally upon divorce. According to these laws, any property owned by Mark or Priscilla prior to marriage is their respective separate property and will be distributed to the owner upon divorce. However, after marriage, any earnings of Mark or Priscilla will become community property. In other jurisdictions, courts apply the equitable division rules. Under this statutory scheme, all property owned by either party at divorce is divided equitably by the courts regardless of ownership prior to marriage.

Although Mark has made it clear that his Facebook fortune is his separate property by marrying Priscilla the day after his company went public, the distinction between separate and community property can become blurred over time. Once separate property becomes commingled with community assets, the spouses must keep diligent records of the source of the funds or risk transforming once separate property into community property.

The main question upon the Zuckerberg divorce would be whether Priscilla is entitled to the increased value, if any, of Mark's Facebook stock. The general rule in California is that stock acquired prior to marriage remains the owner separate property upon divorce or legal separation. However, the Zuckerberg case will be different because it is Mark's job to continue to contribute to the growth of Facebook as well as its stock. So this situation begs the question - is the increased value of the Facebook stock merely stock or Mark's earnings during the marriage? One possible solution to this gray area would be the creation of a premarital agreement. Prior to marriage, Priscilla and Mark had the option of determining how the increased value would be divided upon divorce. In the past, Priscilla had Mark sign a "relationship agreement" outlining the details of their relationship before she would agree to move to California to be with him. Considering the massive fortune at stake and the previous history between the parties, it is likely that the parties executed a premarital agreement prior to marriage.

Please contact us if you are considering a divorce from your spouse. Nancy J. Bickford is the only attorney in San Diego County representing clients in divorces, who is a Certified Family Law Specialist (CFLS) and who is actively licensed as a Certified Public Accountant (CPA). Don't settle for less when determining your rights. Call 858-793-8884 in Del Mar, Carmel Valley, North County or San Diego.

Obama Announces Support for Same-Sex Marriage

May 24, 2012

On May 8, 2012 President Barack Obama declared his support for gay marriage. This announcement instantly sparked both criticism and celebration. Considering that America will elect its next President this year, Obama effectively brought the issue of gay marriage to the political forefront. Obama has clarified that his announcement only represented his personal opinion and reaffirmed that questions regarding marriage are to be decided by the states.

Just as individuals have polarized over the issue of gay marriage, so have the states. All states agree that marriage is a fundamental right guaranteed under the Constitution. The right to marry is recognized under the umbrella of the fundamental right to privacy. Also under the right to privacy are other fundamental rights such as procreation, custody of one's children, and the right to make decisions regarding the child's upbringing. Further, because the right to marry is so fundamental, the government is not permitted to infringe on that right without passing strict scrutiny. The government has the burden to prove that a law or regulation is narrowly drawn to further a compelling government interest. "Narrowly drawn" is often interpreted to mean the least restrictive means of achieving that actual compelling interest. The states that have prohibited same-sex marriage interpret the right to marry as only protected when the marriage involves a man and a woman.

Under the Constitution, the government is not permitted to treat similarly situated classifications of people differently. The United States Supreme Court has declared that when particular classifications are involved, the law must pass strict scrutiny to be upheld. These classifications include race, national origin, and alienage. The Supreme Court has also distinguished gender as a class but requires the government overcome a much more lenient burden. However, the Supreme Court has not yet decided what scrutiny to apply to laws involving discrimination based on sexual orientation. Therefore, states have continued to apply various levels of scrutiny based on the particular holdings within each state.

Residents in San Diego are in a particularly unique situation. California previously granted marriage licenses to same-sex couples but has since ceased to do so. Thus, some same-sex couples remain married in San Diego. These marriages bring up distinctive issues for attorneys if the couple decides to seek a divorce. The case may also involve child custody and visitation issues that need to be resolved. Another common theme throughout same-sex divorces and dissolution of domestic partnerships is litigation over pets. As we have previously blogged, pet custody is becoming more prominent in many divorce proceedings, especially between same-sex couples.

Please contact us if you are considering a divorce from your spouse, a legal separation, or have questions regarding custody. Nancy J. Bickford is the only attorney in San Diego County representing clients in divorces, who is a Certified Family Law Specialist (CFLS) and who is actively licensed as a Certified Public Accountant (CPA). Don't settle for less when determining your rights. Call 858-793-8884 in Del Mar, Carmel Valley, North County or San Diego.

A New Rising Trend in Alimony?

May 21, 2012

In San Diego, many courts award spousal support in various family law hearings. A new survey has sparked a family law debate, who pays alimony more often - men or women? The new survey indicates that more women are paying alimony than ever before. However many practicing attorneys argue that, although women pay support in a few cases, men still are responsible for the majority of support payments.

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Alimony, more commonly known as spousal support in family law, is set by a judge or agreed upon by the parties in many family law cases. The amount of the award and the length of the obligation is dependent on a number of factors including: the needs and abilities of the parties, the length of the marriage, the standard of living enjoyed by the parties during the marriage, and any other factor the court deems relevant. In the past, many states had laws providing that only men could be ordered to pay spousal support to their wives.

In 1979, the United States Supreme Court decided a case entitled Orr v. Orr and created new Constitutional standards for spousal support laws. It is rare that the Supreme Court hears a case involving questions of family law because these issues are generally left to the states to decide. However, the Court determined that laws that prohibited courts from ordering women to pay spousal support were in violation of the United States Constitution. In Orr v. Orr, an Alabama statute permitted alimony to be awarded to wives but not to husbands. The stated rationale for this law was that the state was address the economic disparity between men and women and protecting women in financial need following a divorce. The Supreme Court analyzed the law under an intermediate scrutiny standard because it discriminated based on gender. The state had the burden to prove that the law was substantially related to an important government interest. The state did not meet that burden and the law was overturned.

Spousal support and child support typically go hand-in-hand. With the men's rights groups on the rise, many fathers are finding new and more effective ways to seek custody of their children. Previously, the Tender Years Presumption was applied throughout the United States, including California. Under the Tender Years Presumption, mothers were presumptively given custody of children still in their "tender" years. Several courts have held that this presumption is unconstitutional for the same reasons the Supreme Court overturned the Alabama law in Orr v. Orr. Thus, the Tender Years Presumption was replaced almost uniformly with some variation of the "best interest standard" in child custody cases. Under the current standards, San Diego family courts often make both child support and spousal support awards in favor of men. However, many attorneys still debate whether these awards amount to a significant enough number to equalize the spousal and child supports awarded in favor of women.

Please contact us if you have questions regarding custody and visitation and/or divorce. Nancy J. Bickford is the only attorney in San Diego County representing clients in divorces, who is a Certified Family Law Specialist (CFLS) and who is actively licensed as a Certified Public Accountant (CPA). Don't settle for less when determining your rights. Call 858-793-8884 in Del Mar, Carmel Valley, North County or San Diego.

Domestic Violence in the Spotlight

May 17, 2012

The overnight hit television show Glee has become extremely popular with its teenage audience. The show follows a group of fictional high school students as journey through their teenage years. One of the show's attractions is its many singing and dancing numbers performed by the students for their glee class. Glee's most recent episode entitled "Choke" featured a more serious topic, domestic violence. Harsh criticism has followed the show's depiction of this important cause, one critic stated "Choke is a morally reprehensible hour of television, one from which the show many never fully recover." The most common complaint from viewers and supporters of the fight against domestic violence is that the show gave the topic an "insultingly short shrift".

Glee attempted to shed some light on various misconceptions about domestic violence. The victim in this episode is the loveable "Coach Beiste". Beiste is a large and masculine woman who always had trouble finding a date because of her macho nature. She is the coach of the boy's football team for the high school and is often seen lifting weights and screaming at the players. Recently Beiste married Cooter Menkins, a well-liked football recruiter. Regardless of size, shape, appearance or gender any person can be victimized by domestic violence. In fact, because so many instances of domestic violence go unreported, it is difficult to get a clear understanding of what is exactly going on behind closed doors. Throughout the United States only one out of every four incidences of domestic violence get reported.

The episode portrayed one incident in which, out of an alcoholic rage, Cooter punched Coach Beiste and gave her a black eye. Alcoholism, drug abuse and addiction in general are often researched in connection with domestic violence. Although researchers debate the actual percentage of domestic violence incidents, which are fueled by substance abuse, generally many batterers admit they consumed alcohol or abused illegal drugs on the day of the incident.

Like many victims who do not want to disclose incidents of violence, Coach Beiste told her coworkers and students that she got her black eye in the gym from a punching bag. Victims hide their injuries for a number of reasons including, but not limited to fear of the abuser, judgment from friends and family, in efforts to protect their abuser, out of a belief that police and other agencies cannot help them. San Diego offers many resources throughout the community that specialize in helping victims of domestic violence. The San Diego Family Justice Center is a one-stop-shop for all victims regardless of whether they are ready to leave their abuser.

The key to understanding the crime of domestic violence is recognizing that it is a deliberate pattern of abuse that results in a cycle. Throughout the cycle, the couple rotates through many stages and these stages can appear in any order and possibly occur all in one day. Generally in the cycle there is a tension-building stage where the abuser is becoming angry and the victim may feel as if he or she is walking on eggshells in the relationship. Next an incidence of violence including emotional, physical or sexual violence can occur as a result of the mounting tension. Following the violent incident the abuser is likely to apologize and promise it will never happen again or blame the victim for the incident. The next stage typically is called the honeymoon stage or the "making-up" stage where the abuser fulfills most of his or her promises and the victim might believe he or she has changed. The last seen of Glee's Choke episode depicts Beiste returning to her husband after she vowed to leave him. This is not uncommon and a predictable part of the cycle.

Any situation involving domestic violence is dangerous. Please contact us if you have questions regarding the effects of domestic violence on child custody or divorce. Nancy J. Bickford is the only attorney in San Diego County representing clients in divorces, who is a Certified Family Law Specialist (CFLS) and who is actively licensed as a Certified Public Accountant (CPA). Don't settle for less when determining your rights. Call 858-793-8884 in Del Mar, Carmel Valley, North County or San Diego.

Could Octomom Lose Custody of Her Children?

May 16, 2012

1385006_colorfull_ballons_2.jpgNadya Suleman, otherwise known as "Octomom," is famous for giving birth to octuplets in 2009. In addition to her octuplets, Octomom has six other children. Recently Octomom has been criticized in the news for poor parenting. The controversy surrounded a complaint filed by her hair stylist who claimed that the fourteen children were living in substandard conditions. TMZ has reported that only one toilet is operating in the home, which is supplemented with portable toilets located outside in the backyard. According to Suleman, she could not afford to repair the other toilet in the home because the quote of $150 was too expensive. In addition to living in an unsanitary environment, the hair stylist provided photos that suggest the children were locked in a room while Suleman had her hair done.

These images have allegedly sparked an investigation by Child Protective Services (CPS), which will determine whether the children are at risk of any substantial harm. The photos depict a messy house with writing on the walls. The hair stylist has also provided photographs of the outdoor toilets. CPS has responded by saying that a messy house does not violate any law and methods of potty training are within the parent's discretion.

If CPS determines that the children should be permitted to remain in the home up to 12 months of services may be provided to the family in order to improve conditions for the children. If CPS determines that the children are in danger, it will file a petition in Juvenile Court and ask that the children be removed from Suleman's home. If the children are removed, they may be placed with a relative or in foster care depending on the particular circumstances. Further, Suleman will need to take parenting classes and counseling if she wished to reunify with her children. Up to 18 months of services will be provided if a parent is making efforts toward reunification. If she does not satisfy the court's concerns, the children could be placed with a legal guardian or even adopted by another person(s).

Like the hairstylist did in the Octomom case, community members have the opportunity to report suspected abuse or neglect of children. Under California law child abuse includes any of the following: the non-accidental physical injury of the child, willful cruelty or unjustifiable punishment, sexual abuse, and neglectful abuse including failing to provide adequate food, clothing, shelter, medical care or supervision.

In any child custody case the most important consideration is the health, safety and welfare of the child. If one parent is not addressing these concerns, typically his or her time with the child is reduced and the child spends more time with the more adequate parent. However, the Suleman case involves a different scenario. Suleman underwent in vitro fertilization and the children do not have a father recognized by the family court system. Therefore, governmental agencies may become involved in ensuring the children are properly cared for.

Please contact us if you have questions regarding child custody and visitation. Nancy J. Bickford is the only attorney in San Diego County representing clients in divorces, who is a Certified Family Law Specialist (CFLS) and who is actively licensed as a Certified Public Accountant (CPA). Don't settle for less when determining your rights. Call 858-793-8884 in Del Mar, Carmel Valley, North County or San Diego.

Reese Witherspoon Fights Father's Bigamy Charges

May 15, 2012

Award-winning actress Reese Witherspoon appeared in Nashville's probate court on May 11, 2012 to address allegations against her father, John, for bigamy. Witherspoon informed the judge in an emergency hearing that her father should be placed under a conservatorship due to his alcoholism and on-set dementia. The judge has yet to rule in this matter but has sealed the case against media/public access in interest of the parties' privacy.

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Witherspoon's parents separated in 1996; however, the couple never officially divorced. As a result, Witherspoon's mother, Betty, filed a lawsuit claiming that her husband recently married another woman. However, Betty claims that he was not mentally stable enough to remember the marriage and denies entering into it. In addition, Betty has filed a restraining order/injunction against the purported "new wife" which prohibits her from using the last name of "Witherspoon".

According to California marriage laws, a married person is prohibited from marrying any other person besides his or her spouse. If a married person enters into another marriage with a person besides his or her spouse, he or she may face criminal bigamy charges. Under bigamy prohibitions, John's subsequent marriage would be void. Betty is requesting that the alleged marriage between John and his new wife be annulled.

As we have previously blogged, determining whether a couple has in fact separated is a question of fact. The court will take into consideration factors such as whether: the couple continues to purport to be married, the spouses live separate and apart, either spouse engages in romantic conduct, either spouse continues to perform martial duties, finances are commingled, and the couple attend social gatherings together.

Betty Witherspoon claims that she is still in love with her husband and that she did not want to file for divorce. Additionally, she claims she has regular contact with her husband. However, John's new wife has moved in with him and allegedly convinced him to change his will. Despite this evidence that the couple had not separated in 1996, a court will likely determine that they have considering the strong evidence that John intended the marriage to be over when he began residing with another woman and even attempted to bring her to social gatherings like Reese's wedding.

Continue reading "Reese Witherspoon Fights Father's Bigamy Charges" »

Usher's Child Custody Confessions

May 12, 2012

Famous R & B artist Usher is currently litigating a hotly contested custody case with his former wife Tameka. Tameka and Usher were married for two short years before Usher filed for divorce in 2009. Currently the couple shares joint custody of their two young sons. On Tuesday May 1, the pair attended a court hearing in Georgia where the judge ordered them to work out some type of agreement "or else." The judge instructed them to attempt to reach a temporary child custody and visitation arrangement in a private mediation setting. If they were unable to reach an agreement, the judge would impose a temporary order upon Usher and Tameka. In this case, the two would have no control over the outcome.

It is common in the San Diego family court system for a judge to order parties to attempt reaching a mutually acceptable agreement. Negotiating and mediating disputes, especially those regarding child custody, result in less turmoil in an already hostile situation. This approach tends to promote cooperation and a healthy co-parenting relationship between the parties that is in the best interest of the child. However, when domestic violence is involved in a case, party negotiations will be ineffective and unsuccessful.

Harsh mudslinging has been a common tactic throughout the Raymond custody dispute. Tameka has accused Usher of being behind in child support payments in the amount of at least $34,000. Tameka has also alleged that Usher is an unfit father because he has a habit of doing drugs, specifically prescription pills, in front of their children. As a result of this allegation, she has requested Usher be ordered to undergo drug testing. Usher has denied any drug use and in addition is requesting more time with his children. We have recently blogged about the divorce and the effects on children. In order to promote stability in the children's lives, many resources are available to divorcing couples or adverse parties in custody disputes.

Last year, Tameka requested that the court reduce Usher's custody and visitation rights to their two sons. The children are still very young, the oldest, Usher V is four years old and the youngest, Naviyd, is just three years old. In order to be successful in a child custody and visitation modification motion, the requesting party must show the court that a significant change of circumstance has occurred since the previous court order. One popular ground for this request is that the other parent has become unfit in such a way as to render him or her an ineffective or inappropriate parent. As Tameka has alleged here, drug abuse is a common allegation that, if proved, may result in a change of custody.

Tameka is now requesting a modification in the current child support order. She alleges a "substantial change" in Usher's income since their divorce proceeding. First, in order to collect the unpaid child support, Tameka must be able to prove that Usher in fact had an obligation to pay that support and did not pay it. In San Diego, the Department of Child Support Services is an excellent resource for parents who wish to enforce a current order to collect unpaid support. However, custody and visitation are completely separate from child support orders. If Usher in fact is behind on support, Tameka must still allow him his court-ordered time with the children.

Please contact us if you have questions regarding custody and visitation and/or divorce. Nancy J. Bickford is the only attorney in San Diego County representing clients in divorces, who is a Certified Family Law Specialist (CFLS) and who is actively licensed as a Certified Public Accountant (CPA). Don't settle for less when determining your rights. Call 858-793-8884 in Del Mar, Carmel Valley, North County or San Diego.

FAQ: Family Court Services Mediation in San Diego

1. What is FCS Mediation?

Family Court Services (FCS) provides child custody recommended counseling in family law cases when separating or divorcing parents cannot agree on a child custody sharing plan. Child custody recommended counseling is provided in a private counseling office with a trained court counselor. The FCS conference allows both parents to work together toward a mutually acceptable agreement which is in the best interest of their children. The court counselor will evaluate the case and make a recommendation to the Judge regarding child custody and visitation if the parents are unable to reach an agreement.

2. Is mediation required?

In any dissolution matter regarding child custody and visitation where there is a dispute, Family Code section §3170 mandates that the case be set for child custody recommending counseling prior to the court hearing. Mediation has been required in California for divorcing parents regarding child custody and visitation since 1981.

3. What topics will be discussed in Mediation?

The main topic is child custody and visitation. This includes legal custody and physical custody arrangements. In making a parenting plan, topics such as birthdays, holidays, and summer vacation can be determined by a visitation schedule agreed upon by the parents. Topics such as child support, spousal support, and property division are not usually addressed but agreements can be drafted through your attorney if decided upon mutually by the parents.

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Four ways to approach your divorce in San Diego

Divorce is never easy, but it is nice to know you have options. You can approach your divorce in four different ways, each of which has their pros and cons. Make sure to select an option that is right for you. No two marriages are the same and therefore, no two divorces will be the same. Just because something worked well for someone else does not mean it is the best option for you and your family. In any case, you should consult an attorney before filing the final paperwork with the court.

1. Do it yourself Divorce

Most attorneys would advise against doing the divorce yourself. The reason for this is that divorce can be very complicated and a single mistake can cost you a lot. Doing it yourself may save you the time and expense of getting an attorney, but you may not get the best result in the end. Because divorce often includes emotions, finances, property, assets, and important decisions about children, it is recommended that you get an attorney in a long term marriage. However, if you have a short term marriage that was only 1 or 2 years, don't have any assets or property, and no mutual children, doing a divorce yourself may be your best option. Nevertheless, it is still highly recommended that you have an attorney look over the final documents just to be sure you didn't miss anything.

Pros- doing it yourself may result in you:
• Reducing expenses by not having to hire an attorney.
• Saving time by not having to go to court as often.
• Being in control of the process.

Cons- doing it yourself may also result in you:
• Not getting the best outcome.
• Losing time with your children.
• Missing out on financial support.
• Failing to discover hidden assets.
• Not having legal support in court.

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Cohabitation Agreements - A New Family Law Trend

April 27, 2012

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Many San Diego couples are deciding to skip the marriage ceremony before they move in together. Unlike married couples, these cohabitating couples are not well protected if a split occurs. More and more unmarried couples are considering entering into prenuptial or cohabitation agreements in order to control the outcome of a breakup.

A cohabitation agreement is a legally binding contract that is drawn up by an attorney. The parties to these contracts are seeking similar rights as those afforded to married couples. These couples find it much easier to agree on important issues before the relationship is over and the parties have potentially bitter feelings toward each other. Couples address many issues in cohabitations agreements such as: property division, support, and custody of any pets. One major motivation to enter into a cohabitation agreement is the acquisition of property. An unmarried couple interested in purchasing real property together or that agrees to have one spouse move into the house of the other will face many difficult decisions. A cohabitation agreement can define the rights and responsibilities of both parties

In San Diego, family courts will not honor agreements between parties prospectively limiting future rights to child support, child custody and visitation. The health, safety and welfare of children are matters of public policy in California therefore the State refuses to limit a child's access to financial support or a relationship with a parent.

Currently most states, including California, do not recognize common law marriages. Throughout the states that do recognize or have recognized common law marriage the requirements of a common law marriage differ. Generally a common law marriage exists if:

(1) both parties hold themselves out to be husband and wife;
(2) both parties consent to the marriage;
(3) the parties are cohabitating;
(4) the parties have a reputation throughout the community of being married.

Because common law spouses are given rights where common law marriages are recognized, unmarried cohabitants may be under the misconception that they are also entitled to "marital rights" in the State of California. Even if a couple satisfies all four of the usual elements to establish a common law marriage in California, they will not be entitled to any additional rights.

One area where courts have begun to recognize some rights and protections between unmarried cohabitants is in the area of support. This trend, which began in the 1970's with the Marvin v. Marvin case, is commonly known as "palimony." Under this area of family law, a judge may order one former cohabitant to provide financial support to the other if certain elements are satisfied. Unlike support ordered to a former spouse, "palimony" seems to have a strong basis in contract law. If one party promises to support the other that promise may be enforced as a binding contract. A cohabitation agreement is not so different than a "palimony contract" because both result in the enforcement of an agreement reached by two parties before the end of the relationship.

Please contact us if you have questions regarding custody and visitation. Nancy J. Bickford is the only attorney in San Diego County representing clients in divorces, who is a Certified Family Law Specialist (CFLS) and who is actively licensed as a Certified Public Accountant (CPA). Don't settle for less when determining your rights. Call 858-793-8884 in Del Mar, Carmel Valley, North County or San Diego.